C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit for redemption of a house situated in village Giri, District Fali.
2. Plaintiff Banshilal originally filed this suit alleging that the house in question belonged to Fojmal and his sons Kundanmal and Mishrilal, and that the same had been mortgaged by widow of Fojmal, Kundanmal and Mishrilal on Sawan Badi 1, Samwat 1961 for a sum of Rs. 72/- with Ummedmal Ghasiram and Sugal Chand, ancestors of the defendant Dudermal. It was alleged that Mst. Rami --respondent No. 2 was the sole surviving heir in Fojmal's family and was, therefore, entitled to redeem the house in question. It was further averred that Mst. Rami had sold away the equity of redemption in favour of the plaintiff on Mahasud 13, Section 2013 for Rs. 99/-. It was, therefore, prayed that a decree for possession of the house in question by redemption of the mortgage may be granted in favour of the plaintiff.
Subsequently the plaint was amended and Mst. Rami was also joined as a plaintiff and it was prayed that if for any reason the sale of equity of redemption by Mst. Rami is not recognised, the decree for redemption may be granted in favour of Rami, The suit was resisted by the defendant on a number of grounds. The ownership of Fojmal, Kundanmal and Mishrilal to the house in question was denied. It was also pleaded that Rami was not the heir of Fojmal, Kundanmal and Mishrilal and that in any case if the right of any of the plaintiffs to redeem the property is recognised the redemption may be granted on payment of Rs. 400/- (over and above the mortgage money) which the mortgagee had spent on improvements on the mortgaged property.
3. After recording the evidence produced by the parties the Munsiff, Jetaran decreed the plaintiffs' suit for redemption in favour of Mst. Rami only, on payment of Rs. 72/- as mortgage money. The defendant filed an appeal but the same was rejected by the Civil Judge, Sojat. Consequently the defendant has come in second appeal to this Court.
4. Learned counsel for the appellant has urged that Mst. Rami is not proved to be the heir of the mortgagor and therefore the present suit must fail. In order to appreciate the contention raised by the learned counsel for the appellant it would be necessary to state that there is now no dispute between the parties that the mortgage of the property in question was made by the mortgage deed Ex. A-1 of Section 1961, Sawan Badi 1 for a sum of Rs. 72/- by widow of Fojmal alone, even though the names of Kundanmal and Mishrilal were also mentionedin the body of the document as mortgagors. The mortgage deed was executed by widow of Fojmal only. Evidence on behalf of the plaintiff, it must be said, was got recorded rather carelessly and it was not clearly brought out whether Kundanmal and Mishrilal survived Fojmal besides Fojmal's widow. However, from the contents of the mortgage deed Ex. A-1 it is clear that Formal was survived by his widow as well as his two sons Kundanmal and Mishrilal.
The document has been produced from the custody of the defendant and objection has rightly been not taken to the correctness of the contents of the mortgage deed on behalf of the defendant. Consequently it must be held that Fojmal, who died in or about 1931 A. D. left behind his widow and his two sons. According to Mitakshara School of Hindu Law by which the parties are governed the house in question belonging to Formal devolved on his two sons Kundanmal and Mishrilal as the heirs and survivors of Fojmal, and widow of Fojmal was not competent to mortgage the house in question in favour of the ancestors of the defendant. It is also not in dispute that Kundanmal was the last male holder of the property in question and after his death Mst. Rami his widow became the sole heir of Kundanmal. In this view of the matter Mst. Rami cannot be said to claim the right of redemption as heir of the mortgagor, namely, the widow of Fojmal. The learned Civil Judge, in my opinion, fell into error in holding that Mst. Rami was entitled to redeem the property as heir of widow of Fojmal.
5. Faced with this position learned counsel for the respondents relied on Section 91 of the Transfer of Property Act, 1882 and submitted that besides the mortgagor any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same may institute a suit for redemption of the mortgaged property. He submitted that Mst. Rami being the sole heir of Kundanmal the last male holder in Fojmal's family had interest in the property in question and could consequently redeem the property. In support of his contention he has relied on Sonnakka v. D. Munekka, AIR 1959 Mys 39, and Mitru Thapa v. Gurubari Goudani, AIR 1950 Orissa 150.
On the other hand, learned counsel for the appellant has urged that Mst. Rami has no right to redeem the mortgage, though she may be entitled to sue on the basis of her title, and, therefore, the present suit by her for redemption of the mortgage is not maintainable. He has further urged that the possession of the mortgagee operated as an ouster of the real owners of the property, namely, Kundanmal. Mishrilal and the plaintiff, and, therefore, the plaintiff cannot suefor redemption as a person Interested in the equity of redemption beyond 12 years of possession of the mortgagee. In support of his contention learned counsel has placed reliance on Konnan Sanku v. K. Parvathi Amma, AIR 1963 Ker 249 and Nimba Ganba v. Narayan Paikaji, AIR 1948 Nag 369.
6. After a careful consideration of the rival contentions raised by the learned counsel for the parties. I have come to the conclusion that Section 91 of the Transfer of Property Act gives authority to any person who has any interest in the mortgaged property including that of an owner to institute a suit for redemption of the mortgaged property. The relevant part of Section 91 of the Transfer of Property Act reads as under:--
'91. Besides, the mortgagor, any of the following persons may redeem, or Institute a suit for redemption of the mortgaged property, namely:--
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same;
The words 'any person who has any interest, in the property mortgaged' do not refer only to persons having any interest in the mortgaged security. 'Interest in the mortgaged property' is not the same as 'interest in the mortgaged security'. Learned counsel for the appellant submits that there is apparent similarity between Section 91(a) of the Transfer of Property Act, and Order 34, Rule 1, Civil P. C. It must, however, be borne in mind that the latter provision speaks of persons having any interest either in the mortgaged security or in the right of redemption. But Section 91(a) of the Transfer of Property Act Speaks of persons having interest in the mortgaged property (not security), and also of persons having interest in the right to redeem. Thus to my mind there is a fundamental distinction between the two provisions and it would not be proper to interpret Section 91(a) of the Transfer of Property Act in light of the language used in Order XXXIV, Rule 1, Civil P. C. As observed by Hidayatullah J. (at present the Chief Justice of India) In Pawankumar v. Jagdeo, AIR 1947 Nag 210, Order XXXIV, Rule 1. Civil P. C. is merely procedural and does not create substantive rights, and the matter is to be determined by a true construction of Section 91(a), Transfer of Property Act.
7. In Mirza Yadalli Beg v. Tukaram, AIR 1921 PC 125, it was held that even the smallest interest in the mortgaged property is sufficient to entitle the plaintiff to redeem the mortgage. The same view was taken in AIR 1959 Mys 39, and 1 respectfully agree with theview taken in these cases and overrule the contention raised on behalf of the appellant that the plaintiff does not fall within the definition of 'any person, who has any interest in the property mortgaged' as provided in Section 91(a) of the Act. Consequently, I hold that the plaintiffs are entitled to institute a suit for redemption.
8. As regards the question of ouster suffice it to say that the defendant never took objection to the suit being barred under Article 144, Limitation Act. The question whether the defendant has been in adverse possession of the property is a mixed question of fact and law, and cannot be entertained for the first time in second appeal without there being a plea and issue on the point. Learned counsel as a matter of fact was unable to point out any evidence to show that the defendant has succeeded in establishing his adverse possession over the property in dispute. In this view of the matter the principle laid down in AIR 1963 Ker 249, has no application to the facts and circumstances of the present case.
9. The other case relied upon by the learned counsel for the appellant. AIR 1948 Nag 369, has also no application to the present case inasmuch as all that was held in that case was that in a mortgage suit a person claiming paramount title is not a necessary' party inasmuch as he has no interest in the mortgaged security or in the right of redemption and the only occasion on which a judgment debtor could rightly be made a party to a mortgage suit is when he is in the position described in Section 91 of the Transfer of Property Act. Thus the point of law decided in that case has no relevance to the points of dispute in the present case.
10. No other point was argued.
11. The result is that I do not see any force in this appeal, and hereby dismiss it. But in the circumstances of the case I leave the parties to bear their own costs.